World Applied Sciences Journal 30 (10): 1376-1379, 2014
ISSN 1818-4952
© IDOSI Publications, 2014
DOI: 10.5829/idosi.wasj.2014.30.10.14176
Comparative Characteristic of Criminal Liability for Sexual Offence Against
Juveniles under Law of Foreign Countries and Delinquency Prevention
Oksana Aleksandrovna Voznyak and Yester Levonovna Babajanyan
Kazakh Humanitarian Law University, street Korgalzhyn, Astana, 010000, Republic of Kazakhstan
Abstract: The present article deals with comparative analysis of criminal liability for sexual offence against
juveniles under the law of the Republic of Kazakhstan and some foreign countries. The article provides
statistical data regarding sexual offences in respect of juveniles both in the Republic of Kazakhstan and in
several foreign countries (USA, France, Switzerland, FRG and in others). The study and statistical data
analysis have enabled the authors to reveal the state and causes of such crime and to identify the criminal and
legal ways of fighting these crimes and some ways of their prevention.
Key words:Sexual offence Juvenile Criminal liability Rape
intercourse Corruption of minors Sexual aggression
INTRODUCTION
According to the statistical data, in Kazakhstan,
only during 2011 the sexual violence was committed
against 495 juveniles, 162 minors were traumatized
through the fault of adults, 33 minors were kidnapped and
held illegally. During the last three years, the number of
crimes against juveniles has leapt 76 %. In the USA, 1,400
cases of juvenile deaths are registered caused by adult
actions, about 116 millions of mistreatment of minors are
registered [1]. These data have not left indifferent the
home law enforcer: the new Criminal Code of the Republic
of Kazakhstan introduces a number of amendments
reinforcing the criminal liability. At present time, at the
city of Astana, the study is being completed investigating
the juvenile aggressiveness level and manifestations of
cruel treatment and violence, which has the informative
content for adults, teachers and law enforcers. Therefore,
the studies dealing with delinquency prevention,
particularly, the sexual abuse in respect to teenagers,
seem quite challenging.
Under the Republic of Kazakhstan civil code, the
sexual abuse includes rape, violent sexual actions and
corruption of minors and sexual intercourse with a
person less than 16 years of age (RK CC, articles 120-124).
For comparison, the French criminal code has an original
Violent lecherous actions
Sexual
approach to the interpretation of the notion of sexual
abuse relating it to sexual violence implying the
sexual aggression as “any sexual encroachment”
committed by violence, coercion, threat, or deception” [2].
This treatment Asexual crime, in our view, does not enable
to delaminate this criminal group into subtypes
depending on the violent application or without it. In
particular, the French law divides the sexual crime into
‘raping’ and “other sexual aggression”. In this case, the
notion rape is rather complex: the rape implies any act of
sexual penetration of any kind committed by another
person by violence, coercion, threat, or deception
(articles 222-23). Based on this interpretation, the rape
relates like the raping proper as the violent sexual act,
the sexual intercourse voluntarily with a person younger
than the age established by law [3].
The French CC qualifies the raping types the rape
committed in respect of the juvenile younger than
15 years (paragraph 2 of articles 222-24); inspect of a
person particularly vulnerable due to the age, disease,
severe injury, physically or mentally handicapped, or
to the pregnancy evident or known to the culprit
(paragraph 3). The punishment for the qualified rape is
determined 20 years of criminal imprisonment , unlike the
simple rape, which is punished by 15 yeas of criminal
imprisonment.
Corresponding Author: Babadzhanjan, Kazakh Humanitarian Law University, street Korgalzhyn, Astana, 010000,
Republic of Kazakhstan.
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The French CC determines another crime as the
liability for criminal violence in respect to the minors in
paragraph 1 of articles 222-29 Sexual aggression, which
is not rape in respect of a person under 15 years.
The French CC contains the distinctive feature of
liability for sexual crime is the fact that the person is
liable for public display of genitals at the presence of
many persons in places accessible to public viewing
(articles 222-32). The criminal law of a number of states,
Kazakhstan included, misses this point.
The Swiss law enforcer determines the criminal
actions in respect to the sexual immunity (Switzerland CC
5) and the criminal crimes the sexual actions against
minors (article 187); the sexual actions against dependent
persons (article 188); the sexual coercion (article 189);
article 190-the rape; the sexual intercourse using the
victim in unconscious state (article 191); the sexual
actions against persons kept in institutions, accused
convicts (article 192); the use of handicapped state
(article 193); exhibitionism (article 194); subdividision 3
includes an independent group of crimes- the use
(this group comprises article
of sexual actions
195-assistance to prostitution; article 196-trade of
humans; subdivision 4-pornography; subdivision 5
violation of sexual immunity : sexual harassment
(article 198), intolerable prostitution (article 199); article
200 determines the liability for committing the listed
actions in combination [4].
Article 187 appeals, primarily, as the analysis of
sexual actions against minors . This article envisages
the liability for sexual actions against minors relating to
the persons less than 16 years. It is determined that, if
the age difference between toe participants, is under
three years, this action is not punishable [5].
We believe that the Swiss criminal law has
the drawback that it neglects the criminal attributes.
For instance, the rape (article 190) is determined as the
coercion of a female to illicit cohabitation under threat
of violence . Unlike the French CC, the female is
determined as the victim.
The FRG CC determines more in detail the liability for
sexual crime in respect to juveniles: paragraph 176 refers
to “independent sexual violence against m minors”
(this article envisages the liability for the inducement of
a minor as the peso under 16 years to commit sexual
action, affecting the minor by displaying pornographic
materials, by committing sexual action in the minor
presence) [6], paragraph 176A severe sexual actions
against minors ; paragraph 176b- sexual action against
minors with fatal outcome .
The law enforcer determines rape as coercion to
sexual action with the liability determined in 177: the
person coercing another person under threat of real
danger to health and life or using the situation when the
victim becomes helpless against actions of the person,
compelling this person suffer the sexual actions in respect
to oneself or third person to suffer the sexual actions or
commit them in respect to the person committing the
crime or a third person, is punishable … . (C.333).
As a sexual crime in respect to juveniles, the crime
can be considered when “the sexual action is committed
against persons not in the state to resist “ (paragraph
179). FRG CC paragraph 180 attracts notice, which
determines the liability for favoring juvenile sexual
actions [7]. It means the connivance by adults (full aged)
to enter into intimate relation with persons under 16.
This paragraph should be discriminated from the
prostitution encouragement- the ownership of a relevant
institution or its professional management [7].
The Argentinean criminal law emphasizes the
crimes against sexual freedom , thus implying that the
protected object needs the right to chose a sexual partner
[8]. The drawback of section 3 about sexual crimes, it is
remarkable that there is no distinct discrimination between
sexual crimes committed with violence and its absence.
In particular, article 119 envisages the liability for sexual
abuse in respect to the person of this or other sex under
13 years of age ; article 120 determines this measure of
liability as the imprisonment for three to six years of penal
servitude or a term in jail for misuse of domination over
the victim, sexual immaturity, or other such circumstances
and committed the crime in respect to the person under
16 years of age envisagedód in article 119 [8]. The law
does not envisage what should be understood as sexual
coercion if it is different from rape or any other crime
against sexual freedom.
The Korean law enforcer reduces the sexual crimes
to the group of crimes relating to sexual morals
(chapter 22), separately identifying article 260 criminal
violence implying any violence in respect to another
person [9].
The home law regarding sexual crimes is similar to
that in the Russian. The matter remains unclear why not
to refer article 128.1 slander to sexual crimes, though the
attribute that the culprit is unjustifiably accused of
committing the crime of sexual nature [10].
Since the matter of the object of sexual crimes is
considered, it is worthwhile to note that the sexual
immunity is not often understood as the state of
personal social protection against sexual encroachment
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on the part of other persons [11]. We agree with the
standpoint of Kameneva A.N. in that the basis of social
sexual relations is the sexual setup , the author attributes
the protection to the sexual relations in natural form [11].
But we stand for expansion of this notion determining by
protection both the natural sexual relations and any
voluntary sexual relations between males or females as
long as they do not concern persons under 18 years of
age (lesbianism, homosexuals), naturally, if it does not
concern persons under 18 years if age. It is confirmed in
a number of publications. For instance, M.A. Korotaeva
comments that the lecherous actions should be the
sexual intercourse in the natural form, oral, or anal actions
[12]. The natural sexual behavior should cover either
the homosexual contacts at the presence of victims,
termed by M.A Korotaeva as the lecherous acts in visual
form [12].
We believe that any study should logically draw
the end by proposing some preventive measures
against such phenomena . Here the Convention
about children is fully applicable interpreting that no
violence in respect to minors is not justifiable; any
violence in respect to children is not to be prevented
[13].
Item 25 of the Convention determines distinctly
what should be related to sexual coercion and
exploitation: the harassment or coercion of a child to do
some illegal or mentally harmful sexual action Let us
consider the comment to this article: the sexual coercion
includes any sexual activity imposed to the child by the
adult who is entitled to protection in accordance with the
criminal law; therefore, the sexual coercion should be
understood as any action aimed at provoking the child’s
interest in sexual intercourse and directly to the sexual
contact with the child. (In our view, it is particularly
individual and des not claim public recognition).
Definitely these situations do not expand to the cases of
crime committed by parents themselves or by persons
replacing them who due the child’s helpless or
unprotected state may commit such encroachment
during a prolonged period [14].
Let us go back to the Convention, the latter in
general quite broadly interprets what relates to the sexual
coercion: whether the use of children for commercial
sexual exploitation and their use in audio and video clips
containing full coercion; infantile prostitution, sexual
slavery, sexual exploitation in trips or tourism, infantile
trade for sexual purposes and to compelling the children
to marry [13].
Of course, the Convention about rights of children
does not mention directly the crime prevention, but, the
international convention states fully the stipulations that
it is also a humane and effective solution of juvenile
criminality [15].
Speaking about the sexual crime prevention, the fact
should be remembered that quite often the sexual passion
satisfaction is beyond the rape limits. It should also be
remembered that the motive could be revenge, a drive to
disgrace a woman, to compel her to marry [16].
The choice freedom is the main component of
normal sexual behavior, as A. Akasheva states [17].
This fact can be accepted if prostitution is neglected: yes,
here the choice freedom is present (we do not mean the
sexual slavery), but we would not risk stating normal
sexual behavior. What concerns the pedophilia or sexual
deviation, we agree fully: love , sexual passion towards
children , should not be considered as the norm,
therefore, the person with such an appeal should not be
treated as a normal type.
Proceeding from the above, the raping expands its
net both directly to the rape victim and to the surrounding
persons, it affects both the physical and mental state
(it is no secret that the rape consequences can be both
the articles and mental disorders) [18], so that the victim
and surrounding persons should be taken care of when
they suffer as much as the victim and sometimes even
more. Let us be courageous enough to state that the
situations are possibly were the sexual crime victim due to
the juvenile age fails to realize full tragedy of the accident,
or, again, due to the age, cannot survive the mental
suffering and mental horror is shared by mother (father),
understanding all consequences of the incident with the
child who was (likely) kidnapped and subjected to torture.
The need to prevent sexual crimes is determined in a
number of international statements, among which is the
UN Document A\63\216 rape promulgation and other
types of sexual violence, including rape and other types
of sexual violence in all its manifestations, including
those during conflicts and relevant situations ; the need
of its endorsement is due to the sexual exploitation and
sexual violence by the UN personnel during armed
hostilities [19],
Our studies of age criteria of persons guilty of sexual
crime, in general, confirm the results of other researchers
[20]. They reduce to the fact that persons aged 20-29
years commit majority of rapes, the persons of the same
age group commit the violence A sexual nature. By the
education level, the sexual crimes are inherent to persons
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with secondary or secondary vocational education or
unemployed. Unfortunately, the same tendency persists
until today.
Poor prevention effectiveness in unfavorable families
with children, common practice of deprivation of parental
rights; the social infrastructure of assistance to families
and children in hard life situations not fitting the modern
requirements, is necessary in order to solve challenges
and to eliminate the causes and conditions of their
emergence; the growing risk of proliferation of
information hazardous to children; lack of efficient
mechanisms of juvenile participation in pubic life, in
resolving the challenges affecting juveniles directly are,
in fact, the reasons why the minors become sexual victims.
For instance, articles 128 and 133 of the Republic of
Kazakhstan criminal code do not envisage any attributes
of committing these actions with application of violence
not dangerous to health and life or any the area of its
application. The second part of these articles the violence
application is indicated as the qualifying attribute of
violence dangerous to life and heath, or the threat of its
application. The study if court practice manifests that,
when these crimes are committed, the violence is applied
(or threatened) not dangerous to life or health, therefore,
this circumstance does not acquire legal assessment.
The titles of articles 128 and 133 of the RK CC orient the
law enforcer at he human sale and buy transactions, or, in
the best case, other measures are necessary with the
person . The materials of practice manifest that all other
alternative measures are disregarded. Though each if them
can have an independent significance, if properly
interpreted.
The legislation needs amending in the sphere of
commerce by reinforcing supervision over marketing of
audio and visual products and computer games to
juveniles.
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